Politics & Policy

Judicial Activism and Judicial Abdication

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Are the people of the United States owed at least the opportunity to make an argument, before philosopher-kings in robes change the meaning of their Constitution? We would have thought so. Are they owed an opinion that at least takes a stab at rational justification for the most consequential change in law, politics, and culture inflicted on them by the Supreme Court in a generation? We would have thought that too.

But the justices of the Court ducked these responsibilities yesterday, denying appellate review of decisions by three federal circuit courts to impose same-sex marriage on five states. This choice has brought the number of states with same-sex marriage to 24—only a few of them having chosen it democratically—and that number will rapidly climb to 30 when these three circuits impose their redefinition of marriage on the remaining states in their jurisdictions. At that point, with a new meaning of marriage reigning in the majority of the country, it will be very hard to turn back.

Under the Supreme Court’s rules, four of the nine justices can accept a case for review. Why weren’t there four justices willing to review these cases? The simplest explanation is that so far there has been no “circuit split,” with contrary rulings from different federal appeals courts. But that’s more an excuse than an explanation here: The justices take plenty of cases in the absence of such division, if they think they’re important. And what could be more consequential than whether the people get to decide the legal meaning of our society’s most fundamental institution?

The four conservative justices, fearful of what Justice Kennedy will do if he has the chance, seem to prefer kicking this particular can down the road for now. That strategy probably can’t be sustained until the next Court vacancy during a Republican administration, but what else — they might think — can be done right now? The four liberal justices, on the other hand, may not be ready to foist same-sex marriage on the whole country, fearing the backlash that would be caused by a transparently political ruling that could not be connected to the text, history, or principles of our Constitution. Their choice to shrink from taking this step may be the best thing about yesterday’s bad news.

And we do think the American people will have cause to regret same-sex marriage. To disconnect marriage from sexual complementarity is to redefine it so completely that other principles are lost. The divorce revolution has damaged both permanence and fidelity as basic features of marriage — but with marriage redefined so that child-rearing is no longer central to its reason for being, they no longer make any sense at all. Neither does limiting marriage to couples, or even forbidding marriage between the closest blood relations. Polygamy and “polyamory” are therefore the next obvious developments. And the German ethics-advisory council that recently recommended legalization of sibling incest was only following the remorseless logic of the redefinition of marriage.

Indeed, the redefinition of marriage undermines its fundamental purpose: to steer people toward patterns of sexual behavior that facilitate the flourishing of the children that sex sometimes produces. If its purpose is instead to facilitate the emotional happiness of adults, it is hard to see why the government should be involved or why a formal institution is necessary.

We have never really had a debate over these ideas about marriage, for various reasons. Conservatives too often rested their case on tradition and majority sentiment, which proved worthless when majority sentiment turned against tradition. The media have covered the issue thoughtlessly: Many outlets have adopted the phrase “marriage equality” as though it were a neutral description of what is at issue. And the courts, above all, short-circuited the debate by pretending that the country had already adopted same-sex marriage in principle when it ratified the Fourteenth Amendment.

The redefinition of marriage is often said to have served the cause of liberty. Yet defining marriage as the union of a man and a woman restricted nobody’s freedom. Same-sex couples were free to live as they chose; they lacked only official recognition of their unions. The new dispensation, on the other hand, comes with actual threats to the freedom of association and religion.

The courts — first state courts, then lower federal courts, and finally the Supreme Court — have not made us a freer or more equal country, just a less self-governing one.


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